Fourth District, Division Two Reverses Fee Awards Against Defendants and Their Counsel.
Defendants and their counsel lost a motion to disqualify plaintiffs’ counsel in an unlawful detainer trial. The trial court ordered that losing defendants and their counsel, jointly and severally, pay plaintiffs’ attorney’s fees of $8,776.25, as sanctions, under Code of Civil Procedure sections 128.6 and 128.7. Defendants/their counsel appealed and won, illustrating the lesson that the statutory predicates for sanctions must be correct or else a reversal is in order.
Vines v. Tropical Beverage, Inc., Case No. E044408 (4th Dist., Div. 2 July 29, 2008) (unpublished) involved the facts described in our opening paragraph. A reversal occurred because:
· Section 128.6 never became operative. It only came into operation if section 128.7 expired. However, the most recent legislation extended section 128.7 indefinitely.
· Section 128.7 was inapt because (1) plaintiffs never served a “safe harbor” motion so as to give defendants/their counsel the option to voluntarily dismiss the action; and (b) the court failed to describe the conduct to be sanctioned with specificity or failed to explain the basis for the sanction award.
The message here is an easy one: make sure you have specific statutory or promulgating rule predicates for a sanctions motion. If not, due process concerns may invalidate any resultant award.